Rights of transgender youth, adults at heart of cutting-edge legal cases

"I had been known as Grace," said George Dunkelberger, a 12-year-old from south Minneapolis. "But in my head and heart, I'm a boy."

While George's family accepts his transgender status, their insurance company did not. Their ensuing battle over health care coverage is the type of confrontation that is becoming a cutting-edge legal issue.

From public schools to private enterprise, transgender men and women — and youth — are challenging old restrictions and forcing changes.

"There are more lawsuits featuring transgender people because they realize they have rights and they are equally deserving of protection of the law," says Demoya Gordon, a lawyer who previously worked for Faegre Baker Daniels law firm in Minneapolis and is now associated with Lambda Legal, a national organization that defends LGBT people.

Across the country, the federal Equal Employment Opportunity Commission received 202 claims of discrimination based on gender identity and transgender issues in fiscal year 2014, ending Sept. 30, a jump of 37 percent. Payouts to settle complaints amounted to $540,995 in the last fiscal year, up 178 percent.

The Transgender Law Center in Oakland, Calif., a national advocacy organization, also sees increased interest, from 1,500 calls asking for legal and education information on discrimination issues in 2012, to 2,500 in 2014.

Transgender cases in Minnesota vary from use of public restrooms to employment and medical access.

"I think the law is changing for access to public facilities and I think there will be more changes in the next few years," says Jana O'Leary Sullivan, an attorney with the League of Minnesota Cities.

In Crosby, Minn., a complaint about a transgender woman's use of the women's locker room at a city-run swimming pool and fitness center prompted the City Council to pass a policy requiring people to use city facilities that corresponded to the sex listed on their birth certificates. The state Department of Human Rights concluded there was probable cause of discrimination. Crosby agreed to rescind the policy last September and pay the woman $19,500, without admitting to wrongdoing.

The U.S. Department of Education's office for civil rights agreed this month to investigate a claim that a Twin Cities area high school banned a transgender male from using the men's bathroom. "The principal said I make males uncomfortable if I use the male bathroom," said the student, who is now 18 and headed off to college.

Health care complaints include one filed by the mother of a transgender boy in northern Minnesota in June, alleging that her employer has refused to pay for transition-related care, including hormone therapy and surgery. The federal Equal Employment Opportunity Commission (EEOC) said it is investigating.

Lisa Scott, of Minneapolis, sued CSL Plasma in 2013, claiming that the company refused to take her plasma donation because it excludes transgender people. CSL contends that transgender individuals are four times more likely to contract HIV, in documents seeking to have the case dismissed.

In St. Paul, U.S. District Judge Susan Richard Nelson allowed Jakob Rumble, a transgender Minneapolis man, to pursue his discrimination suit against Fairview Southdale Hospital in Edina. He claims he was mistreated by an emergency room doctor.

While cases are often fought by advocates such as OutFront Minnesota, Lambda Legal and the nonprofit St. Paul law firm Gender Justice, individual attorneys also handle transgender issues.

St. Paul attorney Katie Cashel represents transgender clients in family law cases, another growing legal field.

In one divorce, the wife insisted that her ex not wear woman's clothes and demanded that their daughter not be told of her ex's transgender status. Cashel said the daughter was eventually told her father "was bisexual." In the custody agreement, the wife agreed that her ex could wear women's clothes.

An insurance fight

George Dunkelberger's self-awareness began early, he said. "I knew I wasn't a girl when I was 3 or 4."

But he says he didn't understand it, and his parents had no clue, even when at 7 years old, he begged his mother to buy boy's, not girl's, underwear. After he went through therapy to deal with anger issues, he and his mother began to realize that despite his female biology, he identified as a boy.

He changed his name to George, switched to boy's clothes and he and his parents worked with his public school to accommodate him.

The looming issue for George was puberty. "I was worried about developing breasts," George says.

Alison Yocom, George's mother, says her transgender son is far too young for gender-altering surgery. But she came to understand that he would need hormone suppressants to postpone the development of female characteristics.

"We knew this was dire for kids because of the increased suicide rate and depression," says Yocom. "I told [the insurance company] I didn't want this to happen to my son." The suppressants, she says, "buys time for kids to become older and make an informed decision."

The cost was $4,000 a month, she said.

"My insurance company wouldn't pay because my child wasn't 18," Yocom says. "They were willing to have surgery when he was 18 to remove the breasts, but they were not going to help stop breasts from developing."

OutFront Minnesota, the LGBT advocacy group, weighed in and the insurance company relented. Phil Duran, OutFront's legal director, convinced the firm "that it was the right thing to do," she said.

Changes for employers

Britney Austin is facing transgender issues later in life, in the corporate environment.

Austin, 30, worked in Phoenix for Deluxe Financial Services, which is headquartered in Shoreview.

Hired in 2007, Austin announced to her supervisors in 2010 "her intention to present as female at work," according to the federal discrimination suit the EEOC filed against Deluxe in June.

She began undergoing hormone therapy as part of her gender transition. She changed her name in 2011 and asked that her sex be changed in internal records and communication systems, including the company e-mail server and phone directories. She was told by supervisors that she could not make those changes until she "completed the surgery portion of the gender process," the suit maintains. She was prohibited from using the women's restroom, she says.

The suit also claims that co-workers treated Austin in a demeaning manner, referring to her with male pronouns and calling her "Tarzan" to tease her "about her hairiness, appearance and clothes."

Deluxe Corp. issued a statement last week saying it "takes the safety, security and dignity of all our employees very seriously. We are disappointed in the EEOC's decision to pursue litigation in this matter and believe the agency's claims lack merit. We will defend our policies and practices, all of which align with federal and state legal standards.

Austin is represented by Jillian Weiss, a transgender attorney from Tuxedo Park, N.Y. Weiss handles only transgender employment cases. It's a growing area of transgender law, because "there are now clearer court decisions protecting transgender people," she said.

"More people are coming out because of the changing social acceptance and many of them are having problems at work and going to attorneys to address discrimination," Weiss said.

Randy Furst • 612-673-4224

Twitter: @randyfurst